What group is the final arbiter of whether or not a law is constitutional?

Eleven years ago, when my daughter was in high school, I got the idea of Backwoods Home sponsoring a contest at her school. It would be about history and the Constitution. I talked to publisher Dave Duffy and he liked the idea, so we came up with a list of questions the kids would have to answer. The only question I can remember now is one I crafted. It’s the question that opened this blog post and was the last question on the list given to the kids. I remember it because it was the only question that every kid who chose to participate got wrong. More on that below.

What brought that all back to mind was a recent column by Jeff Jacoby on the Supreme Court.

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The Supreme Court’s judgment isn’t absolute

NEWT GINGRICH’S PRESIDENTIAL AMBITIONS may be heading for the exits — opinion polls suggest that the former House speaker’s hour has come and gone — but his critique of judicial supremacy deserves to be taken seriously no matter what happens in Iowa or New Hampshire.

In a 54-page position paper, Gingrich challenges the widely held belief that the Supreme Court is the final authority on the meaning of the Constitution. Though nothing in the Constitution says so, there is now an entrenched presumption that once the court has decided a constitutional question, no power on earth short of a constitutional amendment — or a later reversal by the court itself — can alter that decision.

Thus, when House Minority Leader Nancy Pelosi was asked for her reaction to the Supreme Court’s notorious eminent-domain ruling in Kelo v. New London, she replied as though a new tablet had been handed down from Sinai: “It is a decision of the Supreme Court. If Congress wants to change it, it will require legislation of a level of a constitutional amendment. So this is almost as if God has spoken.”

Contrary to popular belief, the opinions of the Supreme Court Justices were never meant to be revered "almost as if God has spoken," nor should they be.

But judges are not divine and their opinions are not holy writ. As every American schoolchild learns, the judiciary is intended to be a co-equal branch of government, not a paramount one. If the Supreme Court wrongly decides a constitutional case, nothing obliges Congress or the president — or the states or the people, for that matter — to simply bow and accept it.

Naturally this isn’t something the courts have been eager to concede. Judges are no more immune to the lure of power than anybody else, and their assertion of judicial supremacy — plus what Gingrich calls “the passive acquiescence of the executive and legislative branches” — has won them an extraordinary degree of clout and authority. That aggrandizement, in turn, they have attempted to cast as historically unassailable. In Cooper v. Aaron, the 1958 Little Rock desegregation case, all nine justices famously declared “that the federal judiciary is supreme in the exposition of the law of the Constitution” — a principle, they asserted, that has “been respected by this court and the country as a permanent and indispensable feature of our constitutional system.”

That wasn’t really true. In the words of Larry Kramer, dean of Stanford’s Law School (and a former clerk for Justice William Brennan, one of the court’s liberal lions), “The justices in Cooper were not reporting a fact so much as trying to manufacture one.” It worked. In recent decades, the claim of judicial supremacy has clearly prevailed. Look at the way it’s taken for granted, for example, that whatever the Supreme Court decides next spring about the constitutionality of the ObamaCare insurance mandate will settle the issue once and for all.

Gingrich argues that this is unhealthy, and that the elected branches have an obligation to check and balance the judiciary. “The courts have become grotesquely dictatorial, far too powerful and, I think, frankly arrogant,” he said in Iowa last month. From the unhinged reaction his words provoked — “this attempt to turn the courts into his personal lightning rod of crazy is simply Gingrich proving yet again that he needs to be boss of everything,” railed Dahlia Lithwick in Slate — you’d think he had declared war on the heart and soul of American democracy.

But the heart and soul of American democracy is that power derives from the consent of the governed, and that no branch of government — executive, legislative, or judicial — rules by unchallenged fiat. Gingrich is far from the first to say so.

“To consider the judges as the ultimate arbiters of all constitutional questions,” wrote Thomas Jefferson in 1820, is “a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy.” Abraham Lincoln — revolted by the Supreme Court’s ruling in Dred Scott that blacks “had no rights a white man was bound to respect” — rejected the claim that the justices’ word was final. “If the policy of the government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court the instant they are made,” he warned in his first inaugural address, “the people will have ceased to be their own rulers.”

Not all of Gingrich’s proposals for reining in the courts, such as summoning judges before congressional committees to explain their rulings, may be wise or useful. But his larger point is legitimate and important. Judicial supremacy is eroding America’s democratic values. For the sake of our system of self-government, the balance of federal power needs to be restored.

Having read Jeff’s column, you may be able to guess why all the kids in the contest got the question wrong. To a person, they answered, “The Supreme Court.”

But regardless of the opinion held by a majority of the Court, there is one group that can override their opinion — a jury.

If the Court decides a law banning the use of widgets is Constitutional, and the people disagree, then juries will simply acquit those brought to trial, or they would if judges actually did their duty and informed jurors of their right and responsibility to judge not only the facts of a case but the constitutionality and application of the law.

I agree with Jeff that “Judicial supremacy is eroding America’s democratic values. For the sake of our system of self-government, the balance of federal power needs to be restored.” But given the quality, or lack thereof, of people being sent to Washington these days, it is even more important for all Americans to understand the true extent of the power they hold when they sit in a jury box and then to exercise that right regardless of what misleading or outright false instructions they are given by a judge.

6 Responses to “What group is the final arbiter of whether or not a law is constitutional?”

The group that is the final arbiter of constitutionality is the group who puts the most deadly force behind their decision. God gave us our natural rights, But it is man who has written the constitution. Without force of arms that document is merely faded ink of aged paper. With force of arms, it means whatever the armed say it means.

Gingrich was on the correct track about judicial supremacy, then he jumped the tracks and barreled headlong into executive supremacy with the idea that he could simply use U.S. Marshals to arrest judges and force them to answer questions.

We’ve heard the old saying about a stopped clock. Gingrich is more like a blinking VCR, giving the right time once a year.

The New Hampshire House will vote soon on a bill that will require judges to give juries explicit instructions about their right to nullify the law, and require judges to allow the defense to explain it to jurors.

I have served on numerous juries and NEVER was the “fully informed jury” rule give to the jurors. There have even been case where the judged threatened incarceration if it was mentioned by any jurors during the trial. Obviously it is a closely guarded secret. The final “rule” on a law is given by the people, not only the jury, the “people” can choose to follow/obey the ruling or replace those making the rules and then remove the law from the books.

I have often cited ‘jury nullification’ on many sites, but have never considered that action at the ‘Supreme Court’ level. In cases I’ve read of, juries in the past nullified laws for a given situation, not necessarily that the entire law was unjust or unlawful in totality.

Since Article 3, section 2 gives the supreme court “appellate jurisdiction” for both law and fact. I’m a bit curious as to ‘how’, once the Supreme Court has handed down a ruling, the law comes once again before a jury for final nullification. Does not the panel of judges represent the ‘jury appellate’?

I certainly disagree with the activism of the courts in the past, but have not been convinced that the students should have been marked incorrect for their answer.

I have a friend who has worked both as a state’s attorney (prosecutor) and as a public defender. We have had the “fully informed jury” conversation more than once. While he completely agrees with the concept, his advice is that if you choose to pursue this as a juror, you’d best be prepared to be held in contempt of court by most judges. Unfortunately, you’d better have a lot of money for legal fees (and plenty of spare time) if you are even thinking about trying this.